Amado v. Gonzales, 2013 WL 5813082 (C.A. 9)

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This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions.  ”Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011).  Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.

In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue.  In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang.  When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped.  Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.

One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm.  In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge.  The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.

The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report.  According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict.  According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.

Many of the judges on the 9th Circuit have never tried a criminal case or presided over one.  Their naiveté is deplorable.  When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility?  In spite of that, the jury convicted Amado.  Other witnesses also implicated Amado, and the record does not disclose whether Amado testified.  The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.

Where was defense counsel prior to trial?   This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious.  Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.

The majority panel concludes the failure to disclose the information requires a new trial.  How do you think the prosecution will be able to do that?  This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all.  State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.

 

James v. Ryan, 733 F3d. 911 (9th Cir. 2013)

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After having been reversed  by the Supreme Court (Ryan v. James, 133 S.Ct. 579 (2013), the 9th Circuit panel on remand rewrote its decision that will be reversed again when the State of Arizona files cert.

In a sadistic, vicious and brutal murder the defendant James kidnapped the victim, crushed his head with a rock, and threw him down an abandoned mine shaft to his death. James was convicted and sentenced to death in 1981 by an Arizona state court jury. After all appeals in state court were denied, James filed 3 post conviction habeas corpus petitions. All petitions alleged ineffective counsel (among other claims) and were denied by state court judges.  In the last (3d) petition the state court judge wrote: “. . .[as] to the entire petition . . . there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.  No colorable claims have been made.” With that unambiguous statement, all the allegations of ineffective counsel were denied on substantive grounds. The U.S. district court agreed and denied James’ federal habeas corpus petition.

The 9th Circuit holds the state court language is a procedural ruling, the petition is not decided on the merits, and therefore AEDPA is inapplicable. Having reversed all Arizona courts and the U.S. district court judge, the panel reversed the state court penalty phase and remanded for a hearing on mitigation evidence and the ineffective counsel allegation. A 1981 case reversed once by the Supreme Court and destined for another one (unless the 9th Circuit votes to hear it en banc).

The Supreme Court has verbally lashed the 9th Circuit repeatedly for evading AEDPA, and this case is a dramatic example of judicial misapplication of the record. Harrington v. Richter, 562 U.S._ (2011).  All the habeas corpus claims in Arizona state court assert ineffective counsel.   The state court judge in the last petition wrote a 38 page opinion clearly denying the validity of all the ineffective counsel claims.  There is no procedural interpretation and the case has been decided on the merits. Another example of 9th Circuit defiance of AEDPA and the Supreme Court.

Vega v. Ryan, 2013 WL 5992260 (C.A. 9)

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Ignoring AEDPA again and writing a decision as though on direct appeal of a state court decision - a practice repeatedly condemned by the Supreme Court – a 9th Circuit panel reversed another case on collateral review.  Not only did the panel overrule the Arizona Court of Appeal and the Arizona Supreme Court, but reversed the U.S.District Court as well. All courts denied the petition for habeas corpus.

The district court held an evidentiary hearing on the usual ”ineffective assistance of counsel” argument alleging trial counsel had failed to read the records before trial. The  magistrate judge recommended dismissal.  The district court judge agreed, but there is nothing in the record to show that counsel had failed to read the file when preparing for trial. The  9th Circuit panel cites no evidence in the evidentiary hearing to support that assertion.

Vega was convicted of sexual misconduct with his stepdaughter whose mother testified at trial her daughter had recanted her allegations. Despite cross examination of the victim on this issue, the jury convicted the defendant.  Several weeks after the trial, counsel learned the victim had previously recanted in talking with a Catholic priest.  No one, including Vega,  had told counsel about this evidence, and the Arizona Court of Appeal and the Arizona Supreme Court held this evidence not “newly discovered.”  The trial was the third trial against the defendant, and based on the two prior trials Vega and his prior trial lawyers were all aware of this recantation. Yet nothing in the record establishes the other lawyers or Vega  told counsel at the third trial. When counsel did learn of the second recantation he immediately filed a motion to vacate the verdict.  The trial  court, in addition to the Arizona Court of Appeals, the Arizona Supreme Court and the  district court judge all denied the appeal and post verdict proceedings.

How can a lawyer be “ineffective” if the defendant knows about important information and fails to tell counsel about it? The panel says the additional recantation would possibly have tilted the balance in defendant’s favor.  If the jury hears the mother of the victim tesity her daughter recanted her testimony and the jurors nevertheless convicted the defendant, where does this judicial conclusion emerge?

Congress must address eliminating federal court habeas corpus review of state courts. The record demonstrates a constant misconstruction of which this case is another example.

Lujan v. Garcia, 734 F.3d 917 (9th Cir. 2013)

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Another state court conviction reversed by a 9th Circuit panel on habeas corpus grounds after the California Court of Appeal affirmed the verdict of first degree murder.

The evidence was overwhelming. The defendant Lujan repeatedly expressed his intention to kill his estranged wife.  He did so by lying in wait, smashing her head with a concrete block and, at the same time, killed a deputy sheriff whom she was dating. Killed the same way.

Detectives interviewed Lujan, informed him of his right to silence, and discussed the right to counsel but not precisely as worded in the standard Miranda card. Later on, the defendant asked if he could have an attorney present, and the detective explained obtaining an attorney on Sunday might be difficult but the decision was up to him.  The detective added some informal information and said the decision to have a lawyer lay in the defendant’s hands. Without reciting all the questions asked of Lujan, the tenor of the conversation was cordial and non threatening. The entire conversation was recorded and confirmed the absence of any coercion or threats.

At the trial in state court, Lujan admitted committing the murder, and the jury found him guilty. On appeal, the California Court of Appeal agreed the Miranda admonition ”incomplete” but the confession at trial restating the same information Lujan  gave the detective created harmless error.  The federal district court on habeas corpus agreed on the incorrect explanation of of the Miranda warning. The 9th Circuit embraced this decision citing Harrison v. U.S., 392 U.S. 219 (1968-a case decided during the hey days of Supreme Court constitutional inventions).

The purpose of the Miranda rule informing suspects of the right to counsel and silence emerged to remove the constant argument of inconsistent statements between law enforcement officers and suspects occurring in a confined and threatening environment.  The Supreme Court attempted to eliminate allegations of “involuntary” statements elicited from suspects in custody by advising them of their right to silence and to the assistance of counsel. Well intentioned, but repeatedly expanded by other courts beyond its rationale as written by the Supreme Court.  Lujan is an example.

Because detectives did not read the form Miranda card but spoke to Lujan informally, without threatening or misleading him, the 9th Circuit panel granted habeas.  The trial court even ruled the confession was not involuntary.  In other words, the entire rationale underlying Miranda was absent. That consequence did not deter the 9th Circuit despite the California Court of Appeal decision or AEDPA.  In fact, because the defendant had confessed at trial, the admissibility of the confession in custody became redundant.  “No”, said the panel, if the inadmissible confession induced the defendant to testify it constituted “fruit of the poisoned tree” and could not be introduced in evidence.

Here is a case of a voluntary confession, confirmed by the defendant’s testimony at trial, upheld on appeal by a state court, but reversed by the 9th Circuit. The purpose of the Fifth Amendment prohibition of compulsory self incrimination is completely lacking in the  transcript of the confession.  The detective tried to explain to Lujan the option of talking to him or not, with or without an attorney.  According to the 9th Circuit panel, the detective failed to tell Lujan he could have an attorney before and during the questioning.  This is form over substance and a complete mis application of Miranda rationale.  Now a   man unquestionably convicted of murdering two people may go free or his retrial impaired.

It is time for Congress to end the endless charade of 9th Circuit reversals of state court convictions many years afterward on habeas corpus grounds.   Lujan is a perfect example. Under AEDPA the federal court has a heavy burden to reverse state couirts on collaeral review and must accept a reasonable state court decision-even if incorrect.  In reading the Court of Appeal decision, the state court judges interpreted the Miranda admonition and the questioning reasonably.

Stanton v. Sims, 2013 WL 5878007 (U.S.)

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In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity. 

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case. 

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.

Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013

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This Blog does not often discuss immigration cases because of their volume and despite innumerable judicial mistakes in the 9th Circuit.  But Urooj v. Holder, a 2-1 decision, illustrates the total absence of common sense in the 9th Circuit.

The undisputed record establishes that Urooj lied about her application for asylum, paid an “acquaintance” to memorize her false story at the IJ hearing, and who interpreted for her. At the IJ hearing, Urooj refused to answer any questions asked by the government lawyer who introduced her sworn statement conceding her false answers on grounds of impeachment. The IJ ordered her removal.

The 9th circuit panel held the government has the burden of proof to establish loss of a right to asylum. Why?  The person seeking asylum should have the burden of establishing the right to live in the U.S.  In any event, because the petitioner refused to answer questions posed by the government, the latter introduced her admission of false statements as impeachment (of her silence) evidence.  According to the 9th Circuit panel, since Urooj refused to answer questions, there was nothing to impeach, her silence was irrelevant, and no adverse conclusion could be drawn by the IJ.

Absurd.  This person, admitting she lied and refused to answer questions, is allowed to stay in this country?  Using evidentiary rules in litigation for impeachment in an IJ hearing?  If the panel insisted on using federal evidence law all they had to do was convert the impeachment statement to substantive law.  Is this panel decision form over substance? And now the case has to be reheard.  And we  wonder why the 9th Circuit has such a backlog and why we don’t review their immigration decisions.   This case can be decided in 2 paragraphs.

Ayala v. Wong, 730 F.3d 831 (9th Cir. 2013)

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Another death penalty case reversed by the same judge who has never affirmed a state court capital case during the last decade and who himself has been reversed by the Supreme Court more often than any other judge.  If this case is not reheard en banc it will be reversed by the Supreme Court if the AG seeks cert.

When the Supreme Court decided Batson v. Kentucky 476 U.S. 79 (1986) the case gave every trial with a black or Hispanic defendant an automatic ground for appeal if the prosecution excused a minority juror. The Court set up a framework that applies in an infinite fact driven variety of cases and requires trial courts  to spend more time selecting a jury than conducting the trial.  A motion objecting to prosecution excusal of a minority juror now fills rooms with thousands of pages of voir dire transcripts, objections, hearings, appeals and grist for the habeas corpus mill-including the so-called “comparative jury analysis” requiring review of every juror questioned compared with those excused.

Ayala is no exception. Unfortunately, the trial judge inexplicably committed a serious mistake by allowing the prosecutor to explain his reasons for excluding minority jurors in camera without the presence of defense counsel.  In any event, the jury convicted Ayala and voted the death penalty.  On automatic appeal the California Supreme Court affirmed the conviction but only after holding erroneous the trial court hearing without counsel.  Despite the state supreme court ruling that the trial court hearing without defense counsl qualified as state and federal constitutional error, the Justices held the error harmless.  Conviction affirmed on appeal; habeas corpus granted in U.S. district court; appeal by the Warden to a three judge 9th Circuit panel; affirmed in 2-1 decision.

The majority 9th Circuit panel engaged in an academic linguistic analysis of the Batson case and its progeny. The panel concluded the California Supreme Court committed federal constitutional error and had not decided the direct appeal in state court on the “merits” of the Batson motion as required by AEDPA.  Absent a ruling on the merits, de novo review followed. The panel agreed the trial judge had decided erroneously, held this practice caused prejudice, and reversed.  Then the majority panel engaged in an endless discussion of comparative analysis of jurors, one of the most questionable rules ever invented, and completely misunderstanding the reason prosecutors excuse jurors.  Ayala, who killed three men, will probably go free after the 12 year period from his conviction.

The dissent skewers the majority and cites two cases recently decided by the Supreme Court specifically rejecting the majority analysis. Both case had reversed the 9th Circuit. The Ayala case has no precedential consequence, completely misrepresents the law, and is another example of the 9th Circuit efforts to manipulate and undermine the death penalty.

Larsen v. Soto, 730 F.3d 1930 (9th Cir. 2013

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The 9th Circuit “re tried” another habeas corpus case relying on the evidence presented to a magistrate judge who had presided over a post trial hearing and who obviously knew nothing about criminal law.  The case was originally tried by a state court jury in 1999.  Larsen, convicted and sentenced, filed a habeas corpus petition in federal court after his appeal and petitions for habeas corpus in state court were denied.

First, the 9th Circuit had to dispose of the one year statute of limitations for filing petitions for habeas corpus in federal court under AEDPA.  According to the panel, if the petition alleges and supports “factual innocence” AEDPA does not apply.  The panel considered the evidence presented at the hearing and affirmed the district court decision granting the petition.  The Warden appealed to the 9th Circuit.

Officers responded to a call from a bar that a shooting had occurred by a man wearing a green flannel shirt and sporting a pony tail.  Upon arrival at the bar parking lot, the officers saw Larsen, the man who matched the description, throw a knife under a car.  Officers arrested Larsen, who had several prior convictions, gave officers a false name. The jury convicted Larsen of possession of a deadly weapon; conviction affirmed on appeal;  review denied by the state Supreme Court. Subsequent petitions denied.

The U.S. district court granted the petition alleging ineffective counsel and the Warden appealed to the 9th Circuit. Larsen alleged he was “factually innocent.” He asserted his attorney ineffectively represented him on 3 grounds: failure to call defense witnesses; failure to request evidence of fingerprints, or the lack thereof, on the knife; failure to present evidence of third party liability.  All this “evidence” was available to Larsen at the time of trial, verdict and sentence in 1999.  He did not file his state petition on these grounds until 2005, clearly in violation of the AEDPA rule requiring habeas corpus petitions filed within one year after final judgment.

Larsen filed 13 exhibits at the federal habeas hearing. One was signed recently by Mr.McNutt and his wife.who were present at the time of the arrest. Their testimony at the hearing roughly matched their declarations.  Mr. McNutt said another man threw the knife under the car, and Larsen threw nothing. Mrs. McNuttt saw no knife in Larsen’s hand. The McNutts  moved out of state for 2 years and did not know Larsen had been tried and convicted although they saw officers arrest him.  

In another hearsay declaration by  a woman, she stated a man told her he was the one who threw the knife under the truck but had not testified at trial because no one subpoenaed him.  Apparently the magistrate judge did not bother to hear the testimony of trial counsel for Larsen nor that of the officers.  She listened to the testimony of the above witnesses and found Larsen “factually innocent” on this absurd story.   No evidence was submitted on the ineffective assistance of counsel. Based on this story the 9th Circuit panel wrote an opinion that could have been resolved in one paragraph. Or one word.  Denied.

Larsen filed his state petition alleging ineffective counsel in 2005-after 6 years had elapsed and clearly an ineligible time to file a federal petition.  Under Supreme Court law, AEDPA does not apply to cases alleging “factual innocence” if the evidence warrants an exception by presentation of “new evidence.”  There is no “new evidence” here-just a credibility argument.  Obviously the jury rejected it.

The panel cites all the elements of the Warden’s arguments and rebuts every one.   The officers testified the arrest occurred at 12:30 a.m. The McNutts, said it was 7:30. p.m. Oh, just a disagreement on time except it gets dark later at night.  One of the witnesses who testified  at the hearing had been convicted of several felonies.  No problem, said the panel, he could still tell the truth.  It took petitioner 2 years to put this federal  case together and it is no different than the allegations in the state petitions.  And most importantly, said the panel, Larsen pled “not guilty.” 

Time for en banc.

Comment: this is another example of record manipulation.  Larsen alleged ineffective counsel on 3 grounds from the beginning.  All he had to do was assert the reasons for ineffective counsel within the one year period in state court. Instead, he waited 6 years and filed nothing until then. He could have proceeded pro per or sought appointed counsel.  The  panel says nothing about counsel nor cites any record of the trial or appeal in state court. The petition was untimely and Larsen had no grounds for factual innocence any different than at trial.

Dow v. Virga, 729 F.3d 1041 (9th Cir. 2013)

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Every Constitutional textbook should include this case as an example of outrageous appellate decisions.  Another habeas corpus decision reversing a state Court of Appeal case and was written by the same judge who has never tried a criminal case nor sat as a trial judge. If this case is not reheard en banc, the State of California should file cert. to reverse this decision.

The prosecution main witness worked as a cashier at a convenience store when a man with a gun approached, pointed a gun at him, and demanded money. Although the clerk had never seen the man before, he described him to police and said the culprit  was wearing a grey sweat shirt, had a missing tooth, and a small scar somewhere on his face.   

Defendant was arrested in connection with another robbery. At a lineup, defense counsel asked that each person wear a band aid under his right eye to conceal the scar on his face.  The cashier identified the defendant. Police obtained a search warrant and found a grey sweatshirt in the defendant’s house.

In the first trial, which hung, the cashier changed his testimony slightly, and also made some inconsistent statements.  The defendant had no missing tooth but a gap between his front teeth. According to the detective, the scar was not visible from more than a few feet away.  

At the retrial, the detective testified that Dow had asked for the band aid rather than counsel. During closing argument the prosecutor wrongfully told the jury the defendant had asked for the band aid at the lineup to conceal his identity. A defense ”expert” witness testified how misidentification errors occur but the 9th Circuit panel says nothing about whether the defendant testified.  The jury found the defendant guilty.

The State Court of Appeal agreed the mis statement by the prosecutor about seeking a band aid was misconduct but qualified it as harmless error and affirmed the verdict. The district court judge denied the petition the petition for habeas corpus.

The 9th Circuit panel recites all the evidence, argues with it, and says the defendant did not have a missing tooth-just a gap.  When someone is looking at the barrel of a gun pointed directly at him that distinction is irrelevant.  The defendant does have a scar on his face, very small and not visible unless he stands close to another person.

The 9th Circuit re trys the case; criticizes the prosecutor; rewrites the same evidence the jury heard.with all the mistakes in the victim’s testimony; and considered the “expert ” who explained to the jury about mis identification.  Nothing about the defendant’s testimony.    

The panel embraced the venerable case of Napue v. Illinois, 360 U.S. 264 (1972) requiring reversal of a case if the prosecutor knew false evidence had been admitted and it could have affected the verdict.  In Napue the prosecutor withheld evidence a witness had been promised leniency in exchange for his testimony. The California state court agreed the prosecutor knew of the falsity of her argument but that knowledge does not necessarily require reversal of a verdict unless it is “material, i,e.,” whether the evidence could have affected the judgment of the jury. According to the 9th Circuit panel, the state court used the word “would” instead of ”could, “  a lesser standard of harmless error.

Well, said the panel, this wrong use of the two words is contrary to AEDPA requirements so we need not comply with the federal standard and can use a de novo test requiring no deference.

And, said the panel,  the witness made inconsistent statements of identification. But the jury heard all this evidence, including the mistakes in identity testimony, and heard the expert testify to the dangers of mistaken identity. (a witness with a gun pointed at his  head cannot easily distinguish the difference between a gap and a missing tooth). The jury heard no testimony from the defendant. They found the defendant guilty on the same evidence the 9th Circuit panel found him not guilty, or at least entitled to a third trial).

This decision is another abuse of discretion the Supreme Court recently held involving the 9th Circuit.  Parsing the difference between ”could” and “would” is another example  of academic naiveté and reality. And an abuse of discretion.

 

Murdaugh v. Ryan, 724 F.3d 1104 (9th Cir. 2013)

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Several weeks go the Supreme Court reversed the 9th Circuit on grounds of abusing its discretion by manipulating the record.  An appellate court “abusing discretion?”  Those words are nothing compared to the appropriate characterization of the 9th Circuit decision in this case.  In one of the most vicious, depraved, and heinous crimes ever committed, this one exceeds any other case.

The defendant Murdaugh threw the victim into the trunk of his car where he remained for several hours.  After opening the trunk, Murdaugh slammed a meat tenderizer onto the victim’s skull, picked up a metal jackhammer and thrust it into the victims’s face and skull. The defendant severed both hands and fingerpads from the victim, severed his head from the body, pulled out all his teeth to avoid identification, threw  the head and body into separate locations and covered them with horse manure.

After Murdaugh’s arrest and conviction, the trial judge ordered a competency hearing, and the doctors testified he was competent to plead guilty to this crime.  Murdaugh had also committed a previous murder of another victim by beating him to death.  At the trial in the instant case Murdaugh pled guilty, refusing to present any mitigating evidence at the penalty hearing and  was sentenced to death. The record establishes the trial court went to great lengths to apply the appropriate sentence in considering aggravating and mitigating evidence.

On direct appeal the state court affirmed the plea, sentence, and subsequently denied post conviction relief. The U.S. district court denied a petition for habeas corpus and the defendant appealed   The 9th Circuit opinion, written by the same judge who has vacated every death penalty case he served on  directly or en banc, not only criticized the state court proceedings but left some issues open for further argument after remand for further sentencing.

The panel thought the evidence of Murdaugh’s extensive drug use insufficiently considered  by the trial court as a mitigating factor. But Murdaugh submitted no mitigating evidence, refusing to do so. The  9th Circuit panel cited the records of the “competency hearing”  previously held to suggest the extensive drug use relevant as a mitigating factor.

Aside from that, this is an AEDPA case entitled to ssssstataecourt deference but its application completely absent from the decision except at the beginning of the opinion and never referenced again. The decision in this case is not only an abuse of discretion it is reprehensible.  No juror in the world would consider leniency to a man who engaged in the  despicable conduct described above.  And not just this savage murder but the one committed before that.  Does this panel think two murders is not enough for the death penalty?

This decision  is so irresponsible that an en banc hearing should be unanimous in favor of reversal.     

 Note: this case was subject to the Supreme Court decision requiring a jury to find facts warranting the death penalty.  Without discussing this procedural rule, the judge made the findings of fact under a revised state law in this case.